10.  The applicant is a Ukrainian national who was born in 1958 and currently resides in Donetsk. He is a lawyer practising in Ukraine.
11.  On 31 July 1999 the Central Electoral Commission registered the applicant as the representative of a candidate for the presidency of Ukraine, Mr Olexander O. Moroz. The latter was the leader of the Socialist Party of Ukraine at the time.
12.  On 31 October 1999 the Kyivsky District Prosecution Service of Donetsk (the “Kyivsky Prosecution Service”) conducted a criminal investigation into allegations that the applicant had interfered with the citizens' right to vote (Article 127 § 2 of the Criminal Code of Ukraine – “the CC”).
13.  On 1 November 1999 the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate, the incumbent President Mr Leonid D. Kuchma. The applicant had allegedly disseminated this information on 30 and 31 October 1999 in the form of a statement by the Speaker of the Verkhovna Rada (Parliament) published in a special nationwide issue of the Verkhovna Rada newspaper Holos Ukrayiny (газета “Голос України”). The text of the article disseminated by the applicant reads as follows:
“Holos Ukrayiny / newspaper of the Verkhovna Rada of Ukraine / Special edition 29 November 1999 / free copy
Appeal of the Verkhovna Rada of Ukraine to the Ukrainian citizens
We, members of the Verkhovna Rada of Ukraine, are forced to appeal to you in this special edition of the parliamentary newspaper in view of an emergency existing in Ukraine. In fact, a coup d'état has taken place in the country, but the truth is carefully concealed from the people. We are being deceived! A person who appeared on TV and travelled around the country during the last week allegedly as the President of Ukraine Mr L.D. Kuchma is not the person he is pretending to be. It is only a clone of the President, who is being used by Mr Kuchma's criminal entourage to deceive people in the course of the presidential elections in order to retain power. The true President of Ukraine Mr Leonid Kuchma died on 24 October 1999 in Kyiv of acute heart deficiency caused by alcohol-related myocardiodystrophy. His body was cremated in strict secrecy and the ashes were taken abroad. Power has in fact been actually seized by the groups of Rabinovyches, Volkovs, Kobzons and Pinchuks.
People are being intimidated, and forced to vote for the false Kuchma. There is a blatant information blockade of the opposition candidates. The Verkhovna Rada of Ukraine declares that it assumes control over the presidential elections. Each and every act of unlawful dismissal or other persecutions against people connected with the elections will be seen as a criminal offence. We bring this to the attention of the management of businesses and medical and educational institutions.
The powerful propaganda machine aimed at fooling the people has started its work. Power in Ukraine has been usurped.
The Verkhovna Rada declares that the only legitimate source of power in the State is the Ukrainian Parliament.
The Verkhovna Rada calls on all citizens of Ukraine not to allow the presidential elections to be hampered or to be declared unlawful in a manner that will lead to the establishment of a fascist regime in Ukraine.
Speaker of the Verkhovna Rada of Ukraine
14.  Following the applicant's arrest, the Kyivsky Prosecution Service carried out a formal criminal investigation into the allegations made against him.
15.  On 3 November 1999 the Kyivsky Prosecution Service decided to detain the applicant on suspicion of having committed a crime under Article 127 § 2 of the CC (see paragraph 41 below). The applicant was detained in the Temporary Investigative Isolation Unit of the Donetsk Region. He remained there until 10 November 1999.
16.  On 5 November 1999 the applicant was formally charged with having committed an offence under Article 127 § 2 of the CC (see paragraph 41 below). The prosecution service classified his actions as having been committed by an official.
17.  On 10 November 1999 the applicant lodged an application (dated 6 November 1999) with the Voroshylovsky District Court of Donetsk to be released from detention. On 17 November 1999 the court dismissed his application.
18.  On 11 November 1999 the applicant was transferred to the Donetsk Investigative Detention Centre No. 5.
19.  On 16 November 1999 the applicant underwent a medical examination. He was found to be suffering from bronchitis and second-degree hypertension. The medical commission recommended that the applicant be hospitalised.
20.  On 22 November 1999 the Kyivsky Prosecution Service completed the pre-trial investigation into the applicant's case and committed him for trial.
21.  On 25 November 1999 the case file was transferred to the court. On 10 December 1999 the Kuybyshevsky District Court of Donetsk (the District Court”) committed the applicant to stand trial on charges of interference with the citizens' right to vote, contrary to Article 127 § 2 of the CC (see paragraph 41 below). It also decided not to release him from detention.
22.  In the course of the trial Judge T. of the District Court on 7 March 2000 passed a resolution (постанову) ordering an additional investigation into the circumstances of the case. He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him. In particular, he stated:
“... in the indictment containing the charges brought against him it was not shown by the prosecution how Mr Sergey P. Salov had influenced the election results or how he wanted to influence them...
From the material in the case file it can be seen that the applicant disseminated a forged copy of the newspaper Holos Ukrayiny to only five persons; no other information with regard to the attempts by Mr Sergey P. Salov to influence the election results has been established by the investigation during the judicial consideration of the case...
The investigation has not sufficiently shown that the actions of Mr Sergey P. Salov constituted a criminal offence...
The investigative bodies did not consider the issue of whether [the applicant's] acts could be considered a criminal offence under Article 125 § 2 of the Criminal Code [libel] ... [i.e. whether] the actions of the defendant could be understood as dissemination of untrue information about another person (Mr Leonid D. Kuchma) ... on the basis of motives not directly related to the conduct of the elections. ...
The court considers that the investigative authorities have conducted their preliminary investigation insufficiently and that this cannot be rectified in the course of the trial, ... the court cannot convict Mr Sergey P. Salov of a crime under Article 125 § 2 of the Criminal Code [libel] since it cannot reclassify his actions, and the case must therefore be remitted for additional investigation...
This resolution is not subject to appeal in cassation; however, the prosecutor may lodge a complaint against it within seven days of its adoption.”
23.  On 30 March 2000 the deputy prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court (“the Presidium”) against the resolution of 7 March 2000 and requested the initiation of supervisory review proceedings in the applicant's case. He also sought to set aside the resolution of 7 March 2000 in which the case had been remitted for additional investigation. The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant's interference with the citizens' right to vote (Article 127 § 2 of the CC). On the same date the registry of the court acknowledged receipt of the protest.
24.  On 5 April 2000 the Presidium, composed of its President, L.V.I., and the judges R.L.P., P.L.V., R.L.I., M.M.I. and B.A.M., in the presence of a prosecutor, quashed the resolution of 7 March 2000 and remitted the case for further judicial consideration. In particular, the Presidium found that the District Court had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged. It had also not mentioned which particular investigative measures the prosecution was required to take. The Presidium decided not to release the applicant from detention. In particular, it stated:
“... In finding that Mr Salov's actions had the mens rea of a crime provided for by Article 125 § 2 of the Criminal Code of Ukraine, the court, in violation of Article 22 of the Criminal Code, did not examine circumstances essential to this kind of conclusion. The court did not rule on the applicant's intent in his actions referred to in the indictment, whereas the bodies responsible for the preliminary investigation found that Mr Salov had intended to commit a completely different offence. The court did not deal with this [argument of the prosecution] and unfoundedly concluded that the applicant's actions might entail the corpus juris delicti of a crime provided for by Article 125 § 2 of the Criminal Code of Ukraine.”
25.  On 24 April 2000 the District Court dismissed a petition filed by the applicant's lawyer requesting that the case be remitted for additional investigation. It also dismissed the applicant's application for release from detention.
26.  On 1 June 2000 the District Court dismissed a further application for the applicant's release.
27.  On 16 June 2000 the District Court changed the preventive measure applied in respect of the applicant to an undertaking not to abscond.
28.  On 6 July 2000 the District Court, chaired by Judge T., who had heard the case on 7 March 2000, convicted the applicant of interfering with the citizens' right to vote for the purpose of influencing election results by means of fraudulent behaviour. The District Court sentenced the applicant to five years' imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 Ukrainian hryvnyas (UAH)[1]. It held as follows:
“In October 1999 Mr Sergey P. Salov received, in unidentified places, from persons whose identity was not established in the course of the investigation copies of a forged issue of the Holos Ukrayiny newspaper of 29 October 1999. This issue contained information provided by the Speaker of the Parliament (Verkhovna Rada) of Ukraine, Mr Oleksandr O. Tkachenko, concerning the death of the incumbent President, Mr Leonid D. Kuchma ... and a coup d'état perpetrated by criminal circles surrounding him ... This issue contained an appeal by the Parliament of Ukraine to Ukrainian citizens urging them not to sabotage the presidential elections ... in order to prevent the establishment of a fascist regime...
Notwithstanding the false nature of the information contained in the issue in question ..., Mr Sergey P. Salov decided to disseminate copies of it to voters in the Kyivsky District for the purpose of interfering with their right to vote and in order to influence the results of the presidential elections...
According to a forensic examination, ... the eight issues in question were copies of the original version printed with the use of modern software...
The acts of Mr Sergey P. Salov constituted an interference with the exercise of the citizens' right to vote..., they hindered the voters' right to participate in the elections ... [The] dissemination of false information about Mr Leonid D. Kuchma's death was fraudulent ..., the information could have influenced the results of the elections ... and could have prevented voters from electing that candidate as President...”
29.  On 15 September 2000 the Donetsk Regional Court, composed of the judges D.A.D., G.G. and D.A.V., upheld the judgment of 6 July 2000.
30.  On 3 November 2000 and 9 February 2001 respectively the Regional Court and the Supreme Court of Ukraine dismissed, as being unsubstantiated, the applicant's complaints and his request for a supervisory review of his conviction.
31.  On 22 November 2000 the Donetsk Lawyers' Qualifications and Disciplinary Commission annulled the applicant's licence to practise as a lawyer (no. 1051, issued on 17 December 1997). It based its decision on the applicant's conviction of 6 June 2000.
32.  On 23 April 2004 the applicant received a new licence to practise as a lawyer (no. 1572), after passing an examination before the Donetsk Lawyers' Qualifications and Disciplinary Commission and paying the sum of UAH 1,200[2]. He was allowed to sit exams after the legal effects of his conviction were annulled (погашена судимість).
33.  In July 2000 the applicant instituted proceedings in the Voroshylovsky District Court of Donetsk against the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior, claiming compensation for the non-pecuniary and pecuniary damage resulting from his unlawful 10-day detention in 1999 in the Temporary Investigative Isolation Unit (Ізолятор Тимчасового Утримання). In particular, it was contended that he should have been held in the Investigative Detention Centre (Слідчий Ізолятор) and not in the Temporary Investigative Isolation Unit, as his status had been that of a suspect in criminal proceedings.
34.  On 15 June 2001 the Voroshylovsky District Court of Donetsk allowed his claims in part. It also ordered the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior to pay UAH 3,000 (EUR 500) to the applicant.
35.  On 22 November 2001 the Donetsk Regional Court of Appeal decided that the State Treasury, and not the prosecution service or the Ministry of the Interior, was liable for compensating the applicant. It therefore ordered the Donetsk Regional State Treasury Department to pay the applicant UAH 3,000 (EUR 500) in compensation for pecuniary and non-pecuniary damage.
36.  The applicant alleges that this compensation was not paid to him.